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Jurisprude

February 10, 2010
by

Vaughn Walker, the judge in the ballyhooed Olson/Boies challenge to California’s bigoted Proposition 8  is gay.  This hasn’t created too much of a stir yet, but it’s worth addressing preëmptively (I swear the spellchecker put that there!); the likely argument against his fitness to rule on the case boils down to his own interest in the case’s outcome.  Disinterested judges are vital to the American legal system (free semantic tip: uninterested judges fall asleep), and this case is no exception. 

One would never want a case where something important, for argument’s sake we’ll take the presidency of the United States, is decided by a narrow margin that  – again, I am just fabricating this drastic and absurd example to demonstrate a point – breaks along the judges’ political leanings.  That would never happen of course, but you see the point.

Anyhow, 2 arguments come to mind in defense of Judge Walker’s ability to preside here:

1. He’s a professional judge.  These people are very, very bright.  They do this kind of stuff all the time.  I had the privilege of working for a federal district court judge during law school.  The  intelligence, professionalism, and skill that federal judges show is impressive.  Often, they come to the bench from jobs as senior attorneys in the best firms.  For the honor of serving their country, they take heart-stoppingly gigantic pay cuts and work brutal hours.

While it’s important for judges to be disinterested, we’d be kidding ourselves if we thought for a moment that they don’t have feelings about the cases over which they preside.  The court I worked in is in Manhattan.  Madoff was tried there, mafia and other organized crime organizations pass through there frequently; politicians, celebrities and some of the world’s biggest companies bring their grievances there every day.  In an overwhelming majority of cases, the federal judicial system works. 

When it doesn’t there’s always appeal. That’s a foregone conclusion in this case, so Walker knows he will be second-guessed by the 9th Circuit Court of Appeals, and more than likely the Supreme Court.  He’s not going to pull some bush league shit.

2.  The argument that a gay judge is not the best person to preside over a gay civil rights case raises some important questions about our society’s biases.  By extension from that premise, it stands to reason that women ought not to rule on cases involving women’s rights.  Ditto for judges of other races.

The implication would be that someone from the majority side of whatever issue is at stake is somehow better fit to rule on that issue.  That’s dead wrong.  First of all, this hypothetical straight, white, male tabula rasa may be a homophobic, racist, misogynist and we’d never know.  The argument against a gay judge in the Prop 8 case is essentially an argument against information: we’d rather have someone whose predispositions are secret to us.  They’d rather say, “he’s straight, so I can’t imagine he has any dog in this fight.”  It’s an argument for an argument from ignorance. 

Further, the straight white male tabula rasa judge comes from the majority.  Ostensibly, a legal argument for civil rights involves an argument that the majority has disenfranchised the aggrieved minority.  I know that not every white male beats his wife or helmed a slave ship, but why in the world should a member of the majority that created the adverse condition at issue be a better arbiter of its legality than anyone else?  My point isn’t that white men should be excluded, just that no fact whatsoever militates in their favor with respect to any other kind of person.

Update: Immediately upon publishing this post, I saw this nonsense.

2/11 Update: Didn’t take long.

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2 Comments leave one →
  1. JoJo permalink
    February 10, 2010 12:29 pm

    well aren’t you mr. thoughtful-head. i mean, cogent analysis, sir.

  2. February 10, 2010 10:36 pm

    to put my counter argument in the words of Wyatt Cenac: “He’s GAY!”

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